October 25, 2012

DOJ Battles to Keep Trade Talk Document Secret

For more than a decade, an environmental law group has pressed the government for access to documents that were created during trade talks among dozens of nations in the Western Hemisphere.

Now, a one-page position paper is all that remains contested in the long-running case in Washington's federal trial court.

The U.S. Justice Department says the document is classified and that releasing it will hurt foreign relations--jeopardizing the trust other countries have in the United States to keep certain information confidential.

A federal trial judge in Washington didn't buy the argument. Earlier this year, in a rare move, U.S. District Judge Richard Roberts ordered the government to disclose the document to the Center for International Environmental Law. The ruling didn't end the tiff.

DOJ is now fighting in the U.S. Court of Appeals for the D.C. Circuit to protect the secrecy of the single page of information that's called "Document 1" in court papers.

The one-page document, a position paper, was produced during negotiation among the United States and other countries over rules addressing free trade and investment in the Western Hemisphere. The paper confronts the interpretation of the phrase "in like circumstances." The document was shared with 33 other countries.

The trade rules, which were never adopted, "would affect the ability of the United States to protect the environment and human health," J. Martin Wagner of Earthjustice in San Francisco, a lawyer for the Center for International Environmental Law, said in court papers filed in the case Wednesday night.

DOJ attorney H. Thomas Byron III said in a court brief, filed in September, that the text of the document is classified national security information.

DOJ lawyers argue that that documents that were shared among participants in the trade talks were subject to a confidentiality agreement. Other countries, according to DOJ, could lose trust in the United States if the government is forced to reveal the contents of Document 1. The paper is the only document still in dispute in the long-running suit in U.S. District Court for the District of Columbia.

"If other governments believe the United States cannot be trusted to keep negotiating documents confidential when it has agreed to do so, foreign negotiators will be less likely to trust our government and less willing to engage in the give-and-take of negotiations that are necessary to reach a compromise on trade and investment matters," Byron wrote in a court brief in the D.C. Circuit.

Byron also said the "unilateral release of a government’s own negotiating documents could be seen as 'an unfair effort' to influence public opinion and 'entrench its positions,' leading other countries to adopt similarly rigid positions and reducing the prospects for agreement."

Roberts, the judge, said in his ruling in February that the government has "not provided a plausible or logical explanation why disclosure of the document would harm the United States' foreign relations."

Wagner said in the court papers filed Wednesday in the D.C. Circuit that "each time the district court found USTR‘s arguments and evidence to be vague, conclusory and unsupportive of a reasonable expectation of damage to the national security."

The government, Wagner said, hasn't "taken the simple step of confirming or disproving this speculation about loss of trust by inquiring whether any of the other countries objects to its release of Document 1."

The D.C. Circuit hasn't set an argument date in the case, No. 12-5136.